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Stolzle v. Clayton

Court of Appeals of Louisiana, First Circuit

July 11, 2019


          On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket No. C664933. Honorable Richard "Chip" Moore, III, Judge Presiding.

          Frederick A. Stolzle, Jr. Plaintiff/Appellant Baton Rouge, Louisiana In Proper Person

          Michael P. Fruge Counsel for Defendant/Appellee Michael C. Hendry Tony Clayton Port Allen, Louisiana


          McClendon, J.

         In this appeal, the plaintiff challenges a judgment of the trial court that sustained the defendant's peremptory exception raising the objection of prescription. For the following reasons, we affirm.


         On January 3, 2018, Frederick A. Stolzle, Jr. filed a pro se petition for damages against Tony Clayton.[1] Therein, Mr. Stolzle asserted that he and Mr. Clayton entered into a joint venture agreement to share on an equal basis attorney fees in two separate personal injury lawsuits. Mr. Stolzle further alleged that Mr. Clayton received $400, 000.00 in attorney fees in each case, for a total of $800, 000.00, and that Mr. Clayton owes him his share of the attorney fees in the amount of $400, 000.00. In response, Mr. Clayton filed a peremptory exception raising the objection of prescription, asserting that, on its face, Mr. Stolzle's petition was prescribed. Specifically, he maintained that, based on a ten-year prescriptive period and the allegations in the petition, prescription began to run in 2007 and ended in 2017, and Mr. Stolzle did not file his petition until the beginning of 2018.

         After a hearing, the trial court sustained the exception and dismissed Mr. Stolzle's claims. Mr. Stolzle now appeals the August 16, 2018 judgment.


         An objection of prescription is a peremptory exception. LSA-C.C.P. art. 927A(1). At the trial of a peremptory exception, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition. LSA-C.C.P. art. 931. Ordinarily, the party pleading the exception of prescription bears the burden of proving the claim has prescribed. However, when the face of the petition reveals that the plaintiff's claim has prescribed, the burden shifts to the plaintiff to show why the claim has not prescribed. Hogg v. Chevron USA, Inc., 09-2632 (La. 7/6/10), 45 So.3d 991, 998. When, as in this case, no evidence is introduced at the hearing to support or controvert the exception of prescription, the exception must be decided upon facts alleged in the petition with all allegations accepted as true. Cichirillo v. Avondale Industries, Inc., 04-2894 (La. 11/29/05), 917 So.2d 424, 428. If no evidence is introduced to support or controvert the exception, the manifest error standard of review does not apply, and the appellate court's role is to determine whether the trial court's ruling was legally correct. Harris v. Breaud, 17-0421 (La.App. 1 Cir. 2/27/18), 243 So.3d 572, 578-79. Moreover, as a general rule, prescription statutes are strictly construed against prescription and in favor of the claim sought to be extinguished. Taranto v. Louisiana Citizens Property Ins. Corp., 10-0105 (La. 3/15/11), 62 So.3d 721, 726.

         The prescriptive period applicable to an action is determined by the character of the action disclosed in the pleadings. Fishbein v. State ex rel. Louisiana State University Health Sciences Center, 04-2482 (La. 4/12/05), 898 So.2d 1260, 1265. Where an attorney retained in a case employs or procures the employment of another attorney to assist him, as regards the division of the fee, the agreement constitutes a joint adventure or special partnership. Duer and Taylor v. Blanchard, Walker, O'Quin and Roberts, 354 So.2d 192, 194-95 (La. 1978); McCann v. Todd, 203 La. 631, 14 So.2d 469 (1943). The interest that each attorney possesses under such an agreement is the right to participate in the fund resulting from the payment of the fee by the client. Therefore, in a suit by an attorney against another attorney to recover, pursuant to such an agreement, a portion of the fee collected by the latter party from the client is not one for the recovery of attorney fees, but rather is one for breach of the agreement to share in the fund resulting from the payment of the fee. Duer, 354 So.2d at 195. The applicable prescriptive period is ten years. See LSA-C.C. art. 3499; Duer, 354 So.2d at 195.[2]

         At the hearing on the exception, Mr. Clayton disputed that he ever entered into an agreement with Mr. Stolzle. He argued that, regardless, Mr. Stolzle's claim is prescribed. Mr. Clayton stated that the only dates relevant to prescription in the petition were the dates of October 22, 2002, when some type of arrangement was allegedly entered into between Mr. Stolzle and Mr. Clayton to share attorney fees, and late 2007, when Mr. Stolzle alleged that it became difficult to contact Mr. Clayton. Mr. Clayton acknowledged that the petition failed to identify when the alleged fees became due, but he argued that at the very latest, from the allegations in the petition, it can be inferred that would have been in late 2007. Therefore, because Mr. Stolzle did not file his lawsuit until January 3, 2018, Mr. Clayton asserted that the suit was prescribed on the face of the petition.

         Mr. Stolzle did not offer any evidence at the hearing and his oral argument was waived due to the late filing of his opposition to the exception.[3] See Louisiana District Court Rules, Rule 9.9. At the ...

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